Divorce 101: What You Need to Know

Filing for a divorce can be a scary task because not many people know the law, or they’ve heard several things about what could happen, but aren’t sure if it’s true. It’s an unknown territory and can be difficult to maneuver on your own. This is why it’s important to have a concise explanation about each step in the process, to ensure that you’re informed and can be prepared.

• Step One: Filing

You’ve hired your attorney at Guest & Gray, P.C. to handle your divorce. The first step is to file what is called the Original Petition of Divorce which lays out all of the information on your divorce such as the dates of your marriage and separation, the grounds for your divorce (insupportability is standard but there can be other reasons such as adultery), whether there are any children of the marriage, and division of the community property.

As well, the original petition can include temporary orders which are requests that the judge, while the case is pending, order that the other party do something or refrain from doing something temporarily until the divorce is final. Additionally, in filing the original petition in Kaufman County, your attorney will attach a copy of the standing orders signed by all the judges which are orders by the Court that both parties must adhere to while the divorce is pending.

If your petition contains temporary orders, then your attorney will likely (after receiving a court assignment), go the court coordinator and get a setting for what is called a “Notice of Hearing on Temporary Orders.” This just puts your hearing on the court’s docket and it’s better and easier to get all of this taken care of on the same day. After receiving the date of which the hearing will be set, then this notice of hearing is also filed with the District Clerk’s office.

• Step Two: Service

After your attorney files this petition, then service is the next step. You have to make sure that the other party receives a copy of your petition as well as your notice of hearing if there is one. If both parties are in agreement with this divorce, then your attorney won’t have to have citation prepared in order to serve the other party with the petition. The other party will have signed what is known as a waiver of service and that is filed with the court as well. Otherwise, if the parties aren’t in agreement, the District clerk’s office will prepare citation and your attorney will have it served on the other party.

• Step Three: Temporary Orders Hearing

As stated before, your attorney can file what is known as a notice of hearing which will give your date from the court and also it’s a judge’s order commanding that the other party appear on that date. This notice of hearing doesn’t necessarily have to be filed on the date of filing the original petition. Either way, it will be filed and you will have a temporary orders hearing in almost every divorce, particularly contested divorces.

This is an important step in your divorce process. Concisely, it’s a hearing on what the parties can and can’t do until the divorce is finalized. Issues addressed at this hearing include who are the children going to live with, what can you do with your money during this time that is considered community property, who gets what vehicle, what party has to pay child support and health insurance for the time being, if there is going to be any spousal support, etc. All parties and their attorneys will be present and will be permitted to have witnesses testify and to put on evidence in the case to essentially get what you’re asking for. Based upon this evidence and testimony, the judge will enter temporary orders and they will state that it remains in effect until the case is finalized.

• Step Four: Discovery

Many people hear this word “discovery” and have no idea what it entails. Attorneys use discovery to find out about the other party and their case, including its strengths and weaknesses.

In reality, this step can come at different stages in the divorce process. It truly is based upon a case-by-case basis and depends on the unique issues that are presented. Sometimes discovery is filed with the initial petition for divorce and sometimes it comes after filing the petition in an effort to prepare for the temporary orders hearing. Discovery can also be supplemented later and you can do additional discovery if you have not reached the statutory limit on your discovery.

Basically, there are four types of discovery that are normally used in divorce proceedings. The first is requests for disclosure which come from Rule 194 of the Texas Rules of Civil Procedure and they are set questions developed by the legislature that can be asked in a civil case. They are standard questions such as who are your witnesses going to be, are you going to use any experts at trial (doctors, psychologists, etc.), and what are your claims or defenses. The second is interrogatories which are open-ended questions to the other party. These questions can be either standard, uniquely prepared, or a mix of both. The third is request for production which are basically telling the other party what documents you need them to produce. This would be important for such things as producing tax returns so that you can determine the amount of child support that is going to be paid; but, also it’s important if there is a particular issue in the case and you know the other party has documented evidence that would prove your point on that issue. The last form of discovery typically used is called request for admissions and this is where you can get really creative. It’s telling the party “admit or deny” and then you make a statement and the literal response can only be admit or deny.

There are time limitations on the responses to this discovery. If served with the original petition, then the other party has 50 days to respond. If served after the original petition, then the other party only has 30 days to respond. If not answered within the allotted time, then you as the petitioner can file motions to compel which basically ask the judge to make the other party answer your discovery. If you have admissions that haven’t been answered, then you can file a motion to deem the facts admitted and once the judge signs that order, then the judge takes those as true and proven. The other party can no longer deny them, even if there is no proof as to their truth. By not answering, they’ve admitted to those statements.

• Step Five: Mediation

In Kaufman County in contested divorces, the judges will order the case to mediation before a final order or ruling will be issued by the judge. The judge will order the case to mediation, and the parties will agree upon a mediator and a date to mediate the case. On the date of mediation, typically the parties will go to the mediator’s office, the parties will be in separate rooms, and the mediator will go back and forth between the parties with the offers of settlement and the issues that need to be addressed. Parties have an option of a half day or full day mediation, and it generally depends on how many outstanding issues there are in the case and the expected difficulty of settling those issues.

Upon reaching an agreement, the parties, their attorneys, and the mediator will sign a mediated settlement agreement (MSA) which will be filed with the Court. Then, the final order will be prepared based upon that agreement which all parties will sign as well and it will be presented to the judge for approval.

If the parties are unable to reach an agreement, then a final hearing must be had in the case.

• Step Six: Trial/Final Order

As stated before, if you reach an agreement at mediation, then all that needs to occur is a final order. Typically, the MSA will state within its terms that the petitioner’s attorney will draft the final order and send it to the respondent’s attorney for review within a certain amount of days after the parties sign the MSA. If both parties approve the final order, then they will sign it and it will be presented to the judge by the petitioner’s attorney and he/she will sign it as it as it will be agreed to.

However, if there is no agreement in the case and a final hearing is needed, then this must be placed on the judge’s docket. On the day of the hearing, all parties and their attorneys will be present and it will occur much like the temporary orders hearing where parties will be able to present any additional evidence and witness testimony. Again, based upon this information, the judge will enter a final order in the case.